U.S.A. v. Campbell, 00-1601

• Decision Date: 06 March 2001
• Docket Number: No. 00-1601,00-1601
• Citation: 256 F.3d 381
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Tracey Allen Campbell, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 381

256 F.3d 381 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Tracey Allen Campbell, Defendant-Appellant.

No. 00-1601

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 6, 2001

Decided and Filed: May 14, 2001 ^*

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor, No. 99-90009, George C. Steeh, District Judge. [Copyrighted Material Omitted] Daniel R. Hurley, Office of the U.S. Atty., Detroit, MI, Jennifer J. Peregord (argued and briefed), ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

Jonathan M. Epstein, FEDERAL PUBLIC DEFENDERS OFFICE, Detroit, Michigan, for Appellant.

Tracy Allen Campbell, Bradford, PA, pro se.

Before: KRUPANSKY, BOGGS, and BATCHELDER, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Tracey Allen Campbell appeals his conviction on a plea of guilty to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Campbell pleaded guilty after his motion to suppress certain evidence and his motion to dismiss were denied. He now challenges the rulings of the district court denying those motions as well as the district court's calculation of his sentence. For the following reasons, we affirm.

I

On March 11, 1997, a breaking and entering occurred at a home in Lenawee County, Michigan. Firearms and various other items were stolen during the break-in.

On July 14, 1997, the Michigan State Police received a tip that the stolen property could be found at 8670 Jennings Drive in Leoni Township, Jackson County, Michigan. The tipster, who had previously supplied reliable information regarding narcotics violations to law enforcement officials, agreed to participate as an informant in buying one of the stolen firearms, a .38-caliber handgun.

On July 15, 1997, the informant was strip searched for contraband and weapons, given pre-recorded funds for the purchase, and placed under surveillance. The informant went directly to 8670 Jennings Drive, a mobile home, and purchased a .38-caliber handgun from Tracey Campbell. After a short conversation with Campbell, the informant left the residence and met a State Police trooper at a predetermined location. The informant handed over the gun, which, the informant stated, Campbell had retrieved from a small trailer adjacent to his residence.

A subsequent records check revealed that Campbell had previous felony convictions in 1977 for attempted delivery of cocaine and in 1988 for second-degree criminal sexual conduct. Based on this information, the State Police applied for a search warrant for Campbell's mobile home, the adjacent smaller trailer, and a shed at 8670 Jennings Drive. The warrant authorized a search for "any and all firearms ... and . . . narcotics and narcotic paraphernalia."

The search warrant was authorized by a state court judge and was executed on July 16, 1997. The police seized a total of fifteen firearms, including two weapons that had been stolen. On July 16, 1997, Campbell was arrested and charged in Jackson County Circuit Court with receiving and concealing stolen property over $100. On September 12, 1997, Campbell pleaded guilty to the charge. On October 15, 1997, he was sentenced to thirty to ninety months of imprisonment on the state charge.

A one-count information was filed against Campbell in federal district court on April 13, 1999, charging him with unlawfully possessing a firearm on or about July 27, 1997. On July 9, 1999, Campbell moved to suppress the evidence seized pursuant to the search warrant for his residence, on the basis that the warrant lacked probable cause for the search of his home. Campbell also moved to dismiss the information on the ground that his firearms privileges had been restored under Michigan law, so that he was no longer a convicted felon for purposes of § 922(g).

On August 3, 1999, the government filed a superseding information changing the charged date from July 27 to July16, 1997. On September 2, 1999, the district court held a hearing on the two outstanding motions. On September 8, the district court denied Campbell's motion to suppress. On January 10, 2000, the court denied Campbell's motion to dismiss the information, determining that the state had not restored Campbell's firearms privileges as a result of his 1977 conviction for attempted delivery of cocaine and his 1988 conviction for criminal sexual conduct.

On February 8, 2000, Campbell pleaded guilty to the superseding information, reserving the right to appeal the court's rulings regarding his suppression and dismissal motions. On May 2, 2000, Campbell filed a sentencing memorandum arguing that his base offense level should be reduced because it was improperly based on his having committed a prior "crime of violence." On May 23, 2000, the district court rejected Campbell's argument that his base offense level should be reduced. The court sentenced Campbell to 51 months of imprisonment, with 31 months of credit as a result of his state incarceration on related charges, and a two-year term of supervised release.

II

This court reviews for clear error the district court's factual findings regarding a motion to suppress evidence. See United States v. King, 227 F.3d 732, 739 (6th Cir. 2000). The district court's conclusions of law are reviewed de novo. See ibid.The issue of probable cause for the issuance of a warrant is directed initially to the issuing judge. See United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998). The judge must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). A warrant will be upheld if there was a "substantial basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing." Id. at 236, 103 S. Ct. 2317.

In the search warrant affidavit for 8670 Jennings Drive, the police relied on the following: (1) information regarding an investigation into a breaking and entering in Lenawee County, Michigan in which firearms and other items were stolen; (2)a tip that the stolen items would be found at 8670 Jennings Drive; (3) the development of an informant ¹ who would assist the police in recovering the stolen property; (4) a controlled purchase by the informant of a .38-caliber handgun from Tracey Campbell at 8670 Jennings Drive; (5) the recovery of the handgun by Campbell from inside the trailer adjacent to the mobile home at 8670 Jennings Drive; (6) the informant's previous record of supplying reliable information regarding narcotics violations that were investigated and confirmed; and (7) the results of a records check revealing that Campbell had two prior felony convictions.

Campbell claims that because (1) the police lacked probable cause for the issuance of the search warrant and/or (2) the warrant, or portions of it, were invalid as overbroad, the district court should have granted his motion to suppress the evidence, or portions of evidence, collected from the execution of the search warrant. We will address these two contentions in turn.

A

Campbell asserts that the search warrant affidavit lacked probable cause for the search of Campbell's residence at 8670 Jennings Drive. Campbell claims that the affidavit was deficient in several respects: (1) it failed to state evidence of wrongdoing at 8670 Jennings Drive, (2) it was improperly based on an anonymous tip, and (3) it improperly included information regarding Campbell's previous felony record.

Campbell argues that the warrant affidavit failed to state that the .38-caliber handgun purchased at 8670 Jennings Drive was examined and found to be a stolen item or that the .38-caliber handgun was one of the items or handguns stolen in Lenawee County. Campbell argues that even if these facts are inferred from the warrant, the affidavit also failed to state that additional stolen items were expected to be found at 8670 Jennings Drive.

Campbell asserts that the tip was provided by an anonymous and unidentified individual, not a trusted and reliable police informant. Campbell compares his case to those in which this court ruled that affidavits lacked probable cause when they were based solely on anonymous tips that courts deemed unreliable. See United States v. Leake, 998 F.2d 1359, 1365 (6th Cir. 1993) (warrant affidavit held lacking in probable cause where based solely on anonymous phone caller's tip that the caller entered defendant's home, smelled marijuana, and observed what appeared to be marijuana stacked in the basement); United States v. Baxter, 889 F.2d 731, 733 (6th Cir. 1989) (warrant affidavit held lacking in probable cause where based solely on anonymous phone caller's tip that the caller had been to particular address and observed defendant sell cocaine to unknown white male). Campbell claims that his case is dissimilar from cases in which this court upheld search warrants based on information from informants who were known and reliable and who offered detailed personal observations of the defendant's criminal activity. See United States v. King, 227 F.3d 732 (6th Cir. 2000); United States v. Williams, 224 F.3d 530 (6th Cir. 2000); and United States v. Allen, 211 F.3d 970 (6th Cir. 2000) (en banc).

Campbell concedes that the search warrant affidavit did not rely solely on the tip, but also included information from the informant, who had supplied reliable information to law enforcement in the past and who made a controlled purchase of a .38-caliber handgun at 8670 Jennings Drive. The government states that the tipster and the informant are the same individual. Campbell points out, however, that the affidavit does not make this clear. Therefore, Campbell argues that, while the informant may have supplied reliable information to law enforcement in the past, it is not clear from the affidavit that the tipster had done...